Session of 1999
         
HOUSE BILL No. 2309
         
By Representative Haley
          
2-8
          
  9             AN  ACT concerning hate crimes; relating to sentencing and punishment;
10             civil remedies; reporting; amending K.S.A. 1998 Supp. 21-4704 and
11             21-4716 and repealing the existing sections.
12      
13       Be it enacted by the Legislature of the State of Kansas:
14             Section  1. K.S.A. 1998 Supp. 21-4704 is hereby amended to read as
15       follows: 21-4704. (a) For purposes of sentencing, the following sentencing
16       guidelines grid for nondrug crimes shall be applied in felony cases for
17       crimes committed on or after July 1, 1993:

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SENTENCING RANGE - NONDRUG OFFENSES
Category A B C D E F G H I
Severity
Level		 3 +
Person
Felonies		 2
Person
Felonies		 1 Person &
1 Nonperson
Felonies		 1
Person
Felony		 3 +
Nonperson
Felonies		 2
Nonperson
Felonies		 1
Nonperson
Felony		 2 +
Misdemeanors		 1
Misdemeanor
No Record
I 
816
    776
746
 
772
    732
692
 
356
    340
322
 
334
    316
300
 
308
    292
276
 
282
    268
254
 
254
    244
230
 
232
    220
208
 
206
    194
       184
II 
616
    584
552
 
576
    548
520
 
270
    256
242
 
250
    238
226
 
230
    218
206
 
210
    200
190
 
192
    182
172
 
172
    64
154
 
154
    146
       136
III 
206
    194
184
 
190
    180
172
 
89
    85
80
 
83
    78
74
 
77
     73
68
 
69
    66
62
 
64
    60
57
 
59
    55
51
 
51
    49
        46
IV 
172
    162
154
 
162
    154
144
 
75
    71
68
 
69
    66
62
 
64
     60
57
 
59
    56
52
 
52
    50
47
 
48
    45
42
 
43
    41
        38
V 
136
    130
122
 
128
    120
114
 
60
    57
53
 
55
    52
50
 
51
    49
46
 
47
    44
41
 
43
    41
38
 
38
    36
34
 
34
    32
        31
VI 
46
    43
40
 
41
    39
37
 
38
    36
34
 
36
    34
32
 
32
    30
28
 
29
    27
25
 
26
    24
22
 
21
    20
19
 
19
    18
        17
VII 
34
    32
30
 
31
    29
27
 
29
    27
25
 
26
    24
22
 
23
    21
19
 
19
    18
17
 
17
    16
15
 
14
    13
12
 
13
    12
        11
VIII 
23
    21
19
 
20
    19
18
 
19
    18
17
 
17
    16
15
 
15
    14
13
 
13
    12
11
 
11
    10
9
 
11
    10
9
 
9
    8
         7
IX 
17
    16
15
 
15
    14
13
 
13
    12
11
 
13
    12
11
 
11
    10
9
 
10
    9
8
 
9
    8
7
 
8
    7
6
 
7
    6
         5
X 
13
    12
11
 
12
    11
10
 
11
    10
9
 
10
    9
8
 
9
    8
7
 
8
    7
6
 
7
    6
5
 
7
    6
5
 
7
    6
         5

LEGEND
Presumptive Probation
Border Box
Presumptive Imprisonment

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  1      
  2             (b) The provisions of this section shall be applicable to the sentencing
  3       guidelines grid for nondrug crimes. Sentences expressed in such grid
  4       represent months of imprisonment.
  5             (c) The sentencing guidelines grid is a two-dimensional crime severity
  6       and criminal history classification tool. The grid's vertical axis is the crime
  7       severity scale which classifies current crimes of conviction. The grid's
  8       horizontal axis is the criminal history scale which classifies criminal
  9       histories.
10             (d) The sentencing guidelines grid for nondrug crimes as provided in
11       this section defines presumptive punishments for felony convictions, sub-
12       ject to judicial discretion to deviate for substantial and compelling reasons
13       and impose a different sentence in recognition of aggravating and miti-
14       gating factors as provided in this act. The appropriate punishment for a
15       felony conviction should depend on the severity of the crime of conviction
16       when compared to all other crimes and the offender's criminal history.
17             (e)  (1) The sentencing court has discretion to sentence at any place
18       within the sentencing range. The sentencing judge shall select the center
19       of the range in the usual case and reserve the upper and lower limits for
20       aggravating and mitigating factors insufficient to warrant a departure.
21             (2) In presumptive imprisonment cases, the sentencing court shall
22       pronounce the complete sentence which shall include the prison sen-
23       tence, the maximum potential reduction to such sentence as a result of
24       good time and the period of postrelease supervision at the sentencing
25       hearing. Failure to pronounce the period of postrelease supervision shall
26       not negate the existence of such period of postrelease supervision.
27             (3) In presumptive nonprison cases, the sentencing court shall pro-
28       nounce the prison sentence as well as the duration of the nonprison sanc-
29       tion at the sentencing hearing.
30             (f) Each grid block states the presumptive sentencing range for an
31       offender whose crime of conviction and criminal history place such of-
32       fender in that grid block. If an offense is classified in a grid block below
33       the dispositional line, the presumptive disposition shall be nonimprison-
34       ment. If an offense is classified in a grid block above the dispositional
35       line, the presumptive disposition shall be imprisonment. If an offense is
36       classified in grid blocks 5-H, 5-I or 6-G, the court may impose an optional
37       nonprison sentence upon making the following findings on the record:
38             (1) An appropriate treatment program exists which is likely to be
39       more effective than the presumptive prison term in reducing the risk of
40       offender recidivism; and
41             (2) the recommended treatment program is available and the of-
42       fender can be admitted to such program within a reasonable period of
43       time; or
44             (3) the nonprison sanction will serve community safety interests by

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  1       promoting offender reformation.
  2             Any decision made by the court regarding the imposition of an optional
  3       nonprison sentence if the offense is classified in grid blocks 5-H, 5-I or
  4       6-G shall not be considered a departure and shall not be subject to appeal.
  5             (g) The sentence for the violation of K.S.A. 21-3411, aggravated as-
  6       sault against a law enforcement officer or K.S.A. 21-3415, aggravated
  7       battery against a law enforcement officer and amendments thereto which
  8       places the defendant's sentence in grid block 6-H or 6-I shall be pre-
  9       sumed imprisonment. The court may impose an optional nonprison sen-
10       tence upon making a finding on the record that the nonprison sanction
11       will serve community safety interests by promoting offender reformation.
12       Any decision made by the court regarding the imposition of the optional
13       nonprison sentence, if the offense is classified in grid block 6-H or 6-I,
14       shall not be considered departure and shall not be subject to appeal.
15             (h) When a firearm is used to commit any person felony, the of-
16       fender's sentence shall be presumed imprisonment. The court may im-
17       pose an optional nonprison sentence upon making a finding on the record
18       that the nonprison sanction will serve community safety interests by pro-
19       moting offender reformation. Any decision made by the court regarding
20       the imposition of the optional nonprison sentence shall not be considered
21       a departure and shall not be subject to appeal.
22             (i) The sentence for the violation of the felony provision of K.S.A. 8-
23       1567 and subsection (b) of K.S.A. 21-3705, and amendments thereto shall
24       be as provided by the specific mandatory sentencing requirements of that
25       section and shall not be subject to the provisions of this section or K.S.A.
26       21-4707 and amendments thereto. Notwithstanding the provisions of any
27       other section, the term of imprisonment imposed for the violation of the
28       felony provision of K.S.A. 8-1567 and subsection (b) of K.S.A. 21-3705,
29       and amendments thereto shall not be served in a state facility in the
30       custody of the secretary of corrections.
31             (j) The sentence for any persistent sex offender whose current con-
32       victed crime carries a presumptive term of imprisonment shall be double
33       the maximum duration of the presumptive imprisonment term. The sen-
34       tence for any persistent sex offender whose current conviction carries a
35       presumptive nonprison term shall be presumed imprisonment and shall
36       be double the maximum duration of the presumptive imprisonment term.
37       Except as otherwise provided in this subsection, as used in this subsection,
38       "persistent sex offender" means a person who: (1) Has been convicted in
39       this state of a sexually violent crime, as defined in K.S.A. 22-3717 and
40       amendments thereto; and (2) at the time of the conviction under subsec-
41       tion (1) has at least one conviction for a sexually violent crime, as defined
42       in K.S.A. 22-3717 and amendments thereto in this state or comparable
43       felony under the laws of another state, the federal government or a for-

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  1       eign government. The provisions of this subsection shall not apply to any
  2       person whose current convicted crime is a severity level 1 or 2 felony.
  3             (k) If it is shown at sentencing that the offender committed any felony
  4       violation for the benefit of, at the direction of, or in association with any
  5       criminal street gang, with the specific intent to promote, further or assist
  6       in any criminal conduct by gang members, the offender's sentence shall
  7       be presumed imprisonment. Any decision made by the court regarding
  8       the imposition of the optional nonprison sentence shall not be considered
  9       a departure and shall not be subject to appeal. As used in this subsection,
10       "criminal street gang" means any organization, association or group of
11       three or more persons, whether formal or informal, having as one of its
12       primary activities the commission of one or more person felonies or felony
13       violations of the uniform controlled substances act, K.S.A. 65-4101 et seq.,
14       and amendments thereto, which has a common name or common iden-
15       tifying sign or symbol, whose members, individually or collectively engage
16       in or have engaged in the commission, attempted commission, conspiracy
17       to commit or solicitation of two or more person felonies or felony viola-
18       tions of the uniform controlled substances act, K.S.A. 65-4101 et seq.,
19       and amendments thereto, or any substantially similar offense from an-
20       other jurisdiction.
21             (l) If the offender commits a felony and intentionally selects the person
22       against whom the felony is committed or selects the property that is dam-
23       aged or otherwise affected by the felony committed by the offender in
24       whole or in part because of the offender's belief or perception regarding
25       the race, color, religion, disability, sexual orientation, national origin, eth-
26       nicity or ancestry of that person or the owner or occupant of that prop-
27       erty, whether or not the offender's belief or perception was correct, the
28       offender's sentence shall be presumed imprisonment and such sentence
29       shall be up to double the maximum duration of the presumptive impris-
30       onment term for the underlying felony.
31             Sec.  2. K.S.A. 1998 Supp. 21-4716 is hereby amended to read as
32       follows: 21-4716. (a) The sentencing judge shall impose the presumptive
33       sentence provided by the sentencing guidelines for crimes committed on
34       or after July 1, 1993, unless the judge finds substantial and compelling
35       reasons to impose a departure. If the sentencing judge departs from the
36       presumptive sentence, the judge shall state on the record at the time of
37       sentencing the substantial and compelling reasons for the departure.
38             (b)  (1) Subject to the provisions of subsection (b)(3), the following
39       nonexclusive list of mitigating factors may be considered in determining
40       whether substantial and compelling reasons for a departure exist:
41             (A) The victim was an aggressor or participant in the criminal conduct
42       associated with the crime of conviction.
43             (B) The offender played a minor or passive role in the crime or par-

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  1       ticipated under circumstances of duress or compulsion. This factor is not
  2       sufficient as a complete defense.
  3             (C) The offender, because of physical or mental impairment, lacked
  4       substantial capacity for judgment when the offense was committed. The
  5       voluntary use of intoxicants, drugs or alcohol does not fall within the
  6       purview of this factor.
  7             (D) The defendant, or the defendant's children, suffered a continuing
  8       pattern of physical or sexual abuse by the victim of the offense and the
  9       offense is a response to that abuse.
10             (E) The degree of harm or loss attributed to the current crime of
11       conviction was significantly less than typical for such an offense.
12             (2) Subject to the provisions of subsection (b)(3), the following no-
13       nexclusive list of aggravating factors may be considered in determining
14       whether substantial and compelling reasons for departure exist:
15             (A) The victim was particularly vulnerable due to age, infirmity, or
16       reduced physical or mental capacity which was known or should have
17       been known to the offender.
18             (B) The defendant's conduct during the commission of the current
19       offense manifested excessive brutality to the victim in a manner not nor-
20       mally present in that offense.
21             (C) The offense was motivated entirely or in part by the race, color,
22       religion, ethnicity, national origin or sexual orientation of the victim.
23             (D) The offense involved a fiduciary relationship which existed be-
24       tween the defendant and the victim.
25             (E) (D) The defendant, 18 or more years of age, employed, hired,
26       used, persuaded, induced, enticed or coerced any individual under 16
27       years of age to commit or assist in avoiding detection or apprehension for
28       commission of any person felony or any attempt, conspiracy or solicitation
29       as defined in K.S.A. 21-3301, 21-3302 or 21-3303 and amendments
30       thereto to commit any person felony regardless of whether the defendant
31       knew the age of the individual under 16 years of age.
32             (F) (E) The defendant's current crime of conviction is a crime of
33       extreme sexual violence and the defendant is a predatory sex offender.
34       As used in this subsection:
35             (i) "Crime of extreme sexual violence" is a felony limited to the
36       following:
37             (a) A crime involving a nonconsensual act of sexual intercourse or
38       sodomy with any person;
39             (b) a crime involving an act of sexual intercourse, sodomy or lewd
40       fondling and touching with any child who is 14 or more years of age but
41       less than 16 years of age and with whom a relationship has been estab-
42       lished or promoted for the primary purpose of victimization; or
43             (c) a crime involving an act of sexual intercourse, sodomy or lewd

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  1       fondling and touching with any child who is less than 14 years of age.
  2             (ii) "Predatory sex offender" is an offender who has been convicted
  3       of a crime of extreme sexual violence as the current crime of conviction
  4       and who:
  5             (a) Has one or more prior convictions of any crimes of extreme sexual
  6       violence. Any prior conviction used to establish the defendant as a pred-
  7       atory sex offender pursuant to this subsection shall also be counted in
  8       determining the criminal history category; or
  9             (b) suffers from a mental condition or personality disorder which
10       makes the offender likely to engage in additional acts constituting crimes
11       of extreme sexual violence.
12             (iii) "Mental condition or personality disorder" means an emotional,
13       mental or physical illness, disease, abnormality, disorder, pathology or
14       condition which motivates the person, affects the predisposition or desires
15       of the person, or interferes with the capacity of the person to control
16       impulses to commit crimes of extreme sexual violence.
17             In determining whether aggravating factors exist as provided in this
18       section, the court shall review the victim impact statement.
19             (3) If a factual aspect of a crime is a statutory element of the crime
20       or is used to subclassify the crime on the crime severity scale, that aspect
21       of the current crime of conviction may be used as an aggravating or mit-
22       igating factor only if the criminal conduct constituting that aspect of the
23       current crime of conviction is significantly different from the usual crim-
24       inal conduct captured by the aspect of the crime.
25             (c) In determining aggravating or mitigating circumstances, the court
26       shall consider:
27             (1) Any evidence received during the proceeding;
28             (2) the presentence report;
29             (3) written briefs and oral arguments of either the state or counsel
30       for the defendant; and
31             (4) any other evidence relevant to such aggravating or mitigating cir-
32       cumstances that the court finds trustworthy and reliable.
33             New Sec.  3. (a) Independent of any criminal prosecution or the re-
34       sult thereof, any person suffering injury or damage to such person or such
35       person's property whether it be physical, emotional or financial injury or
36       damage as a result of felony violation as provided in subsection (l) of
37       K.S.A. 21-4704 and amendments thereto may bring a civil action for dam-
38       ages, injunction or other appropriate relief. The court may award actual
39       damages, including damages for emotional distress or punitive damages.
40       A judgment may include attorney fees and costs.
41             (b) The attorney general shall collect and disseminate data on inci-
42       dents of criminal acts that evidence prejudice based on race, color, relig-
43       ion, disability, sexual orientation, national origin, ethnicity or ancestry. All

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  1       law enforcement agencies shall report monthly to the attorney general
  2       concerning such offenses in such form and in such manner as prescribed
  3       by rules and regulations adopted by the attorney general. Such informa-
  4       tion shall be compiled by the attorney general and disseminated upon
  5       request to any local law enforcement agency, unit of local government or
  6       state agency. Dissemination of such information shall be subject to all
  7       confidentiality requirements otherwise imposed by law. Data required
  8       pursuant to this subsection shall be used only for research or statistical
  9       purposes and shall not include any information that may reveal the iden-
10       tity of an individual victim of a crime. The attorney general shall publish
11       an annual summary of the data required pursuant to this subsection. The
12       attorney general shall provide training for all law enforcement officers in
13       identifying, responding to and reporting all offenses as provided in sub-
14       section (l) of K.S.A. 21-4704 and amendments thereto. The Kansas law
15       enforcement training commission shall develop and certify a course of
16       such training to be made available to all law enforcement officers. 
17       Sec.  4. K.S.A. 1998 Supp. 21-4704 and 21-4716 are hereby repealed.
18        Sec.  5. This act shall take effect and be in force from and after its
19       publication in the statute book.